Samuel M. Johnson, Jr., Complainant,v.Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionAug 11, 2005
01a55195 (E.E.O.C. Aug. 11, 2005)

01a55195

08-11-2005

Samuel M. Johnson, Jr., Complainant, v. Alphonso Jackson, Secretary, Department of Housing and Urban Development, Agency.


Samuel M. Johnson, Jr. v. Department of Housing and Urban Development

01A55195

August 11, 2005

.

Samuel M. Johnson, Jr.,

Complainant,

v.

Alphonso Jackson,

Secretary,

Department of Housing and Urban Development,

Agency.

Appeal No. 01A55195

Agency No. EEO 05 032

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the

same claim that is pending before or has been decided by the agency or

the Commission. In a complaint dated December 6, 2004, the complainant

claimed that he was subjected to discrimination based on his disabilities

when he was not selected for the position of Equal Employment Opportunity

Specialist, under vacancy announcement 06-MSR-2002-0050z.

In Samuel Johnson, Jr. v. Department of Housing and Urban Development,

EEOC Appeal No. 01A33899 (December 8, 2003), the Commission affirmed

the agency's prior dismissal, for failure to timely seek EEO counseling,

of the above claim by the complainant.

On appeal, the complainant appears to argue that the June 20, 2005 FAD

incorrectly ruled on the wrong claim. He appears to argue that the

FAD ruled on his claim that he was not selected for the position of

Equal Employment Opportunity Specialist, under vacancy announcement

06-DEU-2002-00292, but inadvertently recited vacancy announcement

06-MSR-2002-0050z instead of 06-DEU-2002-00292. A close reading of

the FAD, however, shows that while it discussed vacancy announcement

06-DEU-2002-00292, it did so to give background, and did not rule on

that claim.<1>

The FAD correctly found that the complainant's complaint states the

same claim that is pending before or has been decided by the agency or

the Commission. Accordingly, the agency's final decision dismissing the

complainant's complaint dated December 6, 2004 is affirmed.<2>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 11, 2005

__________________

Date

1EEOC Appeal No. 01A33899 ruled on three claims: (1) the complainant

not being selected under vacancy announcement 06-MSR-2002-0050z, (2)

his not being selected under Schedule A for the positions at issue, and

(3) his not being selected under vacancy announcement 06-DEU-00292.

EEOC Appeal No. 01A33899 affirmed the agency's dismissal of claims 1

and 2, and reversed the agency's dismissal of claim 3, remanding it for

an investigation.

2The complainant also filed a request to reconsider the decision in

EEOC Appeal No. 01A33899, regarding claims 1 and 2 recited therein.

That request has been docketed as EEOC Request No. 05A51106, and is

pending.